Zarvella v. Artuz

• Decision Date: 26 June 2001
• Docket Number: No. 99-2757,99-2757
• Citation: 254 F.3d 374
• Parties: (2nd Cir. 2001) VICTOR ZARVELA, Petitioner-Appellant, v. CHRISTOPHER ARTUZ, Superintendent, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 374

254 F.3d 374 (2nd Cir. 2001)

VICTOR ZARVELA, Petitioner-Appellant, v. CHRISTOPHER ARTUZ, Superintendent, Respondent-Appellee.

No. 99-2757

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued May 1, 2001,

Decided June 14, 2001,

As Amended June 26, 2001

[Copyrighted Material Omitted] Randall U. Unger, Kew Gardens, N.Y. submitted a brief for petitioner-appellant.

Thomas M. Ross, Asst. Dist. Atty., Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty., Leonard Joblove, Asst. Dist. Atty., Brooklyn, N.Y., on the brief), for respondent-appellee.

Before: NEWMAN and CABRANES, Circuit Judges; and THOMPSON,^* District Judge.

JON O. NEWMAN, Circuit Judge.

The basic issue on this appeal concerns the timeliness of a habeas corpus petition. The more precise issues are (1) whether a district court confronted with a so-called "mixed petition" containing exhausted and unexhausted claims should dismiss the petition without prejudice to renewal after exhaustion, or stay further proceedings, and (2) if a stay is entered, whether the stay should be conditioned on prompt initiation of state court exhaustion and prompt return to federal court at the completion of exhaustion. These issues arise on an appeal by Victor Zarvela from the December 14, 1999, judgment of the District Court for the Eastern District of New York (Reena Raggi, District Judge), dismissing as untimely his habeas corpus petition to challenge his state court conviction. We conclude (1) that a district judge confronting a mixed petition has discretion either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition, (2) that in this case a stay should have been entered in response to Zarvela's request to have his mixed petition withdrawn in order to avoid untimeliness, and (3) that the stay should have been conditioned on Zarvela's prompt initiation of state court exhaustion and his prompt return to federal court after completion of exhaustion. Because, with such a stay, Zarvela's petition would have remained timely, we reverse and remand.

Background

Zarvela was convicted of weapons possession and second-degree murder in New York Supreme Court in 1992. The evidence permitted the jury to find that Zarvela sold drugs wholesale and that he shot one of his retailers. Zarvela was sentenced to 25 years to life. His conviction was affirmed by the Appellate Division in 1995, People v. Zarvela, 211 A.D.2d 690, 622 N.Y.S.2d 465 (N.Y. App. Div. 1995), and review by the New York Court of Appeals was denied, People v. Zarvela, 86 N.Y.2d 743, 631 N.Y.S.2d 624, 655 N.E.2d 721 (1995). Zarvela then filed in the state trial court a motion to vacate the judgment, which was denied in 1995; the Appellate Division declined to hear the appeal of the denial.

On April 22, 1997, Zarvela delivered to prison officials a petition for a writ of habeas corpus. See Houston v. Lack, 487 U.S. 266, 276, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988) (timeliness of prisoner's filing measured from date papers handed to prison authorities for mailing). The petition presented five exhausted claims and two unexhausted claims. The petition was delivered two days before the one-year anniversary of the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and was therefore within AEDPA's one-year limitations period, 28 U.S.C. 2244 (d), as applied to habeas petitions challenging convictions that became final prior to AEDPA. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). On May 26, 1997, Zarvela wrote the District Judge a letter, seeking permission to withdraw his petition, without prejudice to renewal at a later date, so that he could present a new claim to the state courts. Zarvela explained that he had recently obtained through a freedom of information request exculpatory evidence that he believed would support a constitutional challenge to his conviction under Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). On June 2, 1997, Judge Raggi endorsed the following ruling on the letter: "Motion to withdraw granted. Clerk to mark case closed. So ordered. Notice: All parties." However, her ruling was not entered on the docket until August 21, 1997.

On June 11, 1997, only nine days after Judge Raggi made her endorsement ruling and more than two months before her ruling was docketed, Zarvela delivered to prison officials a second motion to vacate his conviction, raising the new claim that he had mentioned in his letter to Judge Raggi. More than a year later, in July 1998, the state trial court denied Zarvela's motion on the ground that the evidence claimed to be exculpatory was available to Zarvela before trial. The Appellate Division denied leave to appeal on September 23, 1998.

On October 7, 1998, fourteen days after the Appellate Division's denial, Zarvela delivered a second federal habeas petition to prison officials. This petition included only the exhausted claims from the first petition (the two unexhausted claims from that petition were dropped), plus the new claim that had just been rejected by the state courts. This petition prompted Judge Raggi to re-open Zarvela's closed case.

Judge Raggi dismissed the petition as untimely. She concluded that Zarvela's petition was nine days late, according to the following calculation. First, Judge Raggi found that Zarvela had only two days of eligibility left when he initially filed his federal habeas petition on April 22, 1997. She deemed the one-year clock to have stopped upon that initial filing. Then she deemed the clock to have restarted on September 26, 1998, three days after the state court denial of Zarvela's second collateral attack became final. In effect, Judge Raggi tolled several intervals: the time the initially filed federal petition had been pending, the time between her endorsement ruling and Zarvela's second state court motion, the time that motion was pending in the state courts, and three more days for Zarvela to get notice by mail of the Appellate Division's September 23, 1998, rejection, see Fed. R. Civ. P. 6(e).¹ The clock then ran for eleven days until Zarvela refiled his federal petition on October 7, 1998. Because Zarvela had only two days left on the one-year limitations period when he initially filed his habeas petition, Judge Raggi concluded that his refiled petition was nine days late. She also rejected his claims for equitable tolling based on circumstances in the prison where he was confined.

This Court granted a certificate of appealability, appointed counsel, and ordered briefing on the issues of (1) whether the refiled petition was timely, (2) whether the initially filed petition remained pending due to the lack of a judgment entered upon Judge Raggi's endorsement ruling, and (3) whether Judge Raggi should have stayed the initially filed petition, rather than dismissing it.

Discussion

This case illustrates the procedural complexities confronting a prisoner who endeavors to exercise his statutory right to challenge a state court conviction by means of a petition to a federal district court for a writ of habeas corpus. First, he is required to exhaust in the state courts any constitutional claim he seeks to present in federal court. See Daye v. Attorney General, 696 F.2d 186, 190-92 (2d Cir. 1982)(in banc). If he fails to realize that one or more of his claims has not been fully exhausted (a matter that is not necessarily obvious), he will be considered to have filed a so-called "mixed petition," in which event the district court must either send him back to state court or afford him the opportunity to abandon his unexhausted claims and proceed only with his exhausted claims. Rose v. Lundy, 455 U.S. 509, 519-20, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). If, after filing a habeas petition with fully exhausted claims, he wishes to present a new claim, he must endeavor to amend a still pending petition, cf. Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (new claim does not relate back to dismissed petition), because filing the new claim in a second petition will encounter the severe limitations that AEDPA imposes on the filing of second or successive petitions.² 28 U.S.C. 2244 (b)(2). If his petition contains unexhausted claims that he wishes to pursue, he must return to state court and exhaust these claims. Finally, he must make sure that he has complied with the one-year statute of limitations that AEDPA establishes for filing habeas petitions. 28 U.S.C. 2244 (d).

AEDPA contains a tolling provision that partially ameliorates these procedural complexities. The time during which a properly filed application for state court post-conviction relief is pending in state courts is exempted from the one-year limitations period. 28 U.S.C. 2244 (d)(2). In addition, we have ruled that, under appropriate circumstances, the one-year period is subject to equitable tolling. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). However, the time that a habeas petition is pending in federal court is not exempted from the one-year limitations period. Duncan v. Walker, 121 S. Ct. 2120, 150 L. Ed. 2d 251, (U.S. 2001).

The appropriate disposition of a mixed petition was first considered by the Supreme Court in Rose v. Lundy, supra. The Court ruled that "a district court must dismiss such 'mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or amending or resubmitting the habeas petition to present only exhausted claims to the district court." Lundy, 455 U.S. at 510. That direction was given before Congress significantly altered habeas corpus procedure by imposing a one-year statute of limitations and sharply limiting the grounds for second or successive petitions. After AEDPA, the procedure for accomplishing complete exhaustion merits reconsideration for several reasons.

First, Lundy had no occasion to consider alternative procedures for accomplishing total exhaustion....